Re: <nettime> online petition against unlimited data retention

["Ben Hayes" <ben.hayes@connectfree.co.uk>]

Re the online petition to the European Parliament against  
unlimitted data retention (posted last week), people maybe  
interested (if perhaps not surprised) that the (conservative) chair of 
EP  "Citizens Freedoms and Rights" committee is pushing a deal 
with the Council of the EU (the 15 governments) that would  sell 
data protection in telecommunications down the river for good. 
Looks like the "socialist" groups going to join them as well.  Full 
story: 

EUROPEAN PARLIAMENT COMMITTEE CHAIR TRIES TO  
REACH A "DEAL" WITH THE COUNCIL ON THE SURVEILLANCE 
 OF COMMUNICATIONS 

from Statewatch News Online <<<color><param>0000,0000,0000</param>http://www.statewatch.org/news<color><param>0100,0100,0100</param>> 

There were extraordinary moves last week involving the Council of  
the European Union (the 15 EU governments) and the chair of the  
Committee on Citizens' Freedoms and Rights, Ana Palacio (EPP,  
conservative group, Spain) to reach a "deal" over the retention of  
telecommunications data for law enforcement agencies use - a  
"deal" which would have seen the European Parliament adopting as 
 a negotiating position acceptable to the Council.  

The parliament's Committee on Citizens' Freedoms and Rights  
agreed its 2nd reading position on the proposed revision of the  
1997 Directive on 18 April. On the critical Article 15.1. the  
Committee voted 25 votes to 19 to maintain its 1st reading position 
opposing the retention of communications data (except in specific, 
authorised, investigations - as at present). The EPP group  
(conservative) of which Ana Palacio, Spanish MEP and chair of the  
Committee is a member, led the opposition to the majority view. 

Following this vote the Spanish Presidency of the Council of the  
European Union undertook: 

"a number of informal contacts... [with] interested members of the  
European Parliament with a view to exploring the possibilities for a  
pre-negotiated agreement on a set of compromise amendments to  
be adopted at the plenary vote, now scheduled for 30 May 2002" 

On 3 May and Monday 13 May the Council's Telecommunications  
Working Party examined "a number of compromise texts" including 
that for Article 15.1.  

On Wednesday 15 May, a new amendment to Article 15.1. was  
circulated by Ana Palacio, committee chair, which was to be  
presented to the Council on behalf of the European Parliament as a 
"compromise" agreement - an amendment which was virtually the  
same as the one rejected by the Committee and which accepts the 
 Council's demands for data retention. It was intended that this  
amendment be sent to the Council for agreement by COREPER  
(the permanent representatives of the 15 EU governments based in  
Brussels) - however this formal approach was blocked by the  
parliament's negotiating team when it learnt of the move. 

However, the Spanish Presidency of the Council simply picked up  
the amendment lodged in Ana Palacio's name (amendment no 31)  
and presented a report addressed to COREPER dated 16 May (the 
next day) saying that it was: 

     "acceptable with small modification" 

which is not at all surprising as it is has the same effect as the  
Council's common position. It also accepted with small  
modification another linked amendment (no 32) lodged by Ana  
Palacio changing the "Recital" linked to Article 15.1. This would: 

"allow Member States to require the provider of a public  
communications network or publicly available electronic  
communications service to retain traffic and location data in  
accordance with the law" 

The parliament's Committee's report proposed 23 amendments to  
the Council's common position and further amendments, numbered 
 24 to 43 have been put forward to be considered at the plenary  
session. Of the 23 amendments put forward in the parliament's  
committee report only 2 minor changes are accepted by the  
Council. 

Tony Bunyan, Statewatch editor, comments: 

"The EU governments already have all the powers they need under 
the existing Directive to combat terrorism, this measure has 
nothing to do with terrorism. The proposal by the EU governments 
is a cynical exploitation of public sentiment to introduce draconian 
powers topotentially place the whole population of Europe under 
surveillance. It took years to agree and put in place the 1997 EU 
Directive on privacy in telecommunications in every member state. 
The right to privacy and freedom from surveillance once lost will be 
gone forever. The European Parliament took a principled stand in 
November 2001 and on 18 April. Now it appears that the two 
largest parties - the EPP and PSE - may simply turn tail and 
accept the governments' demands. It is the job of the parliament to 
defend to the hilt citizens' freedoms and rights, it is to be hoped 
that each MEP will look to their conscience before they vote."

Article 15.1 - the different positions 

1. The Amendment (rapporteur: Marco Cappato) agreed by the  
Committee on Citizens's Freedoms and Rights on 18 April as its  
2nd reading position, maintaining the 1st reading position agreed in 
November 2001 (amending the Council's common position under 4 
below) reads as follows: 

15.1. Member States may adopt legislative measures to restrict  
the scope of the rights and obligations provided for in Article 5,  
Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive  
when such restriction constitutes a necessary, appropriate,  
proportionate and temporary measure within a democratic society  
to safeguard national security, defence, public security, the  
prevention, investigation, detection and prosecution of criminal  
offences or of unauthorised use of the electronic communication  
system, as referred to in Article 13(1) of Directive 95/46/EC. These  
measures shall be entirely exceptional and based on a specific law 
which is comprehensible to the general public, and shall be  
authorised by the judicial or other competent authorities on a case- 
by-case basis. Under the European Convention on Human Rights  
and the EU Charter of Fundamental Rights and pursuant to rulings  
issued by the European Court of Human Rights, any form of  
widespread general or exploratory electronic surveillance is  
prohibited. 

2. The EPP/Ana Palacio amendment to the above on 18 April and  
rejected by the Committee (amending the Council's common  
position under 4 below) reads as follows: 

15.1. Member States may adopt legislative measures to restrict  
the scope of the rights and obligations provided for in Article 5,  
Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive  
when such restriction constitutes a necessary measure to  
safeguard national security, (i.e. State security) defence, public  
security or the prevention, investigation, detection and prosecution  
of criminal offences or of unauthorised use of the electronic  
communications system, as referred to in Article 13(1) of Directive  
95/46/EC. To this end Member States may inter alia provide for the 
retention of data for a limited period justified on the grounds laid  
down in this paragraph, in accordance with the general principles of 
Community law, in particular the European Convention on Human  
Rights and pursuant to rulings issued by the European Court of  
Human Rights. 

3. The new Ana Palacio amendment put forward on 15 May  
"acceptable" to the Council (amending the Council's common  
position under 4 below) reads as follows: 

15.1. Member States may adopt legislative measures to restrict  
the scope of the rights and obligations provided for in Article 5,  
Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive  
when such restriction constitutes a necessary, appropriate and  
proportionate measure within a democratic society to safeguard  
national or State security, defence, public security, the prevention,  
investigation, detection and prosecution of criminal offences or of  
unauthorised use of the electronic communication system, as  
referred to in Article 13(1) of Directive 95/46/EC. To this end  
Member States may inter alia adopt legislative measures providing  
for the retention of data for a limited period justified on the grounds  
laid down in this paragraph. All the measures included in this  
article shall be in accordance with the general principles of  
Community law including those referred to in Article 6 paragraphs 1 
 and 2 of the Treaty on European Union.  

4. The Council's common position on data retention in Article 15.1,  
adopted 28 January, reads as follows: 

15.1. Member States may adopt legislative measures to restrict  
the scope of the rights and obligations provided for in Article 5,  
Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive  
when such restriction constitutes a necessary measure to  
safeguard national security, (i.e. State security) defence, public  
security or the prevention, investigation, detection and prosecution  
of criminal offences or of unauthorised use of the electronic  
communications system, as referred to in Article 13(1) of Directive  
95/46/EC. To this end Member States may inter alia provide for the 
retention of data for a limited period justified on the grounds laid  
down in this paragraph, in accordance with the general principles of 
Community law. 

Comment: the Council's position is intended to deflect criticism by  
arguing that the proposal is non-binding and therefore up to each  
member state to enact. This ignores the evidence on the record  
that the Council's plans assume that every EU state allows the  
retention of data and allows access to this for the "law enforcement 
agencies". 

Background 

At the plenary session on 29-30 May in Brussels the European  
Parliament will be discussing a crucial amendment to the position  
on the retention of telecommunications data. The European  
Commission put forward a proposal on 12 July 2000 to introduce a  
number of non-controversial amendments to the 1997 EU Directive  
on privacy in the telecommunications sector. By early last year it  
became clear that the Council intended to use this opportunity to  
effect major changes to meet the long-standing demands of the  
EU's law enforcement agencies (police, customs, immigration and  
internal security agencies) for the retention of all traffic and location 
telecommunications data (phone-calls, e-mails, faxes and internet  
usage) and access to it. 

In reaction to 11 September the Council decided that the issue of  
data retention - not to combat terrorism but crime in general -  
should be a priority.  

In November 2001 the plenary session of the European Parliament  
adopted its 1st reading position which opposed the Council's  
demands. After the Council made its view known in December (it  
was formally adopted on 28 January) the European Commission  
caved in and withdrew its long-standing opposition. The proposal  
therefore returned to the parliament for a 2nd reading and on 18 
April  the Committee on Citizens Freedoms and Rights re-interated 
its  opposition and maintained its previous view, see: the vote in the 
Committee on 18 April If the parliament maintains its position the  
issue will move into the co-decision process and a conciliation  
committee (involving the Council European Parliament and  
Commission) will be set up.  

As Statewatch has revealed, a number of EU governments are  
working on a draft Framework Decision (under Article 34.2.b) to  
make it binding on all 15 EU states to implement a new law  
requiring public communications network or publicly available  
electronic communications service to retain traffic and location data 
 - as soon as opposition in the European Parliament is overcome,  
see: Binding Framework Decision 

For more background please see Statewatch' Observatory on  
Surviellance in Europe <<http://www.statewatch.org/soseurope.htm> 

View this story online:  
<<http://www.statewatch.org/news/2002/may/08survep.htm> 

To receive regular announcements from Statewatch on civil liberties 
 issues in Europe, simply send an e-mail to  
<<office@statewatch.org> 


On 21 May 02, at 19:34, Sjoera Nas wrote: 

Dear Nettimers, 

On 29 May the European Parliament will vote on a very important  
new Privacy Directive, regulating communications privacy and data 
retention. Members of GILC, the Global Internet Liberty Campaign 
(www.gilc.org) are seeking endorsement for their urgent letter to the 
President and Members of the European Parliament. If you  
represent an NGO, 

please send your support to Marc Rotenberg  
<<rotenberg@epic.org>, director 

of EPIC, including your (full) name, e-mail adress and url of the 
organisation. 

Two GILC-members, stop1984.com and quintessenz have also  
launched an online mechanism for individual signatures:  

http://www.stop1984.com/index2.php?text=letter.txt 

The deadline for this letter is 22 May 2002, so please sign on today 
if you support this protest! 

Thank you, 

Sjoera Nas, public affairs XS4ALL 


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